Referring court and Member State
Lithuania, Third Instance, Lietuvos Aukščiausiasis Teismas
Summary
A child was born in Germany to a German father and Lithuanian mother. The parents commenced divorce proceedings in Germany. Following a wrongful retention of the child by the mother in Lithuania, the father initiated return proceedings there. His return application was refused by a first instance court in Lithuania. The father successfully appealed and got a return order but it was not enforced due to further appeals and stays. The first instance non-return order was transmitted to the German Central Authority which then forwarded the decision to the relevant German court. The German court granted custody to the father and ordered the child’s return to Germany. A certificate pursuant to Art 42 of Brussels IIa was annexed to the decision. The mother applied in Lithuania for non-recognition of the German order but her application was rejected. Nevertheless, the referring court stayed the enforcement proceedings and referred several questions to the CJEU. The CJEU said that although intrinsically connected with other matters governed by Brussels IIa, in particular rights of custody, the enforceability of a judgment requiring the return of a child following a judgment of non return enjoys procedural autonomy, so as not to delay the return of a child who has been wrongfully removed to or retained in a Member State other than that in which that child was habitually resident immediately before the wrongful removal or retention. The procedural autonomy of the provisions in Arts 11(8), 40 and 42 and the priority given to the jurisdiction of the court of origin, in the context of Section 4 of Chapter III of the Regulation, are reflected in Arts 43 and 44, which provide that the law of the Member State of origin is to be applicable to any rectification of the certificate, that no appeal is to lie against the issuing of a certificate and that that certificate is to take effect only within the limits of the enforceability of the judgment. The CJEU held that once a non‑return decision had been taken and brought to the attention of the court of origin, it was irrelevant, for the purposes of issuing the certificate pursuant to Art 42, that that decision had been suspended, overturned, set aside or, in any event, had not become res judicata or had been replaced by a decision ordering return, in so far as the return of the child had not actually taken place. Since no doubt had been expressed as regards the authenticity of that certificate and since it was drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return was not permitted and it was for the requested court to declare the enforceability of the certified decision allowing the immediate return of the child. Once an order implying the return of the child has been issued and certified by the State of origin under Art 42, it is not possible to seek non-recognition of that order in the requested State. Otherwise, the objective of the immediate return of the child would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child is wrongfully retained have been exhausted. The Court further concluded that, except where the procedure concerned a decision certified pursuant to Arts 11(8) and 40 to 42, any interested party could apply for non‑recognition of a custody decision, even if no application for recognition of the decision had been submitted beforehand. Finally, Art 31(1), in so far as it provides that neither the person against whom enforcement is sought, nor the child is, at this stage of the proceedings, entitled to make any submissions on the application, is not applicable to proceedings initiated for non‑recognition of a judicial decision if no application for recognition has been lodged beforehand in respect of that decision. In such a situation, the defendant, who is seeking recognition, is entitled to make such submissions.